Can an employer dismiss an employee for misconduct caused, in part, by a disability? Does an employee have the right to accommodation where his or her disability results in misconduct in the workplace? The approach to disability-related misconduct is evolving, and it is crucial that employers, employees, and unions have the tools necessary to locate the difficult balance between accommodation and correction. Our panel of experts will address these issues as well as the following questions:
- What is the “hybrid” approach and how does it differ from the traditional approach to disability-related misconduct? What constitutes a “disability” for the purposes of a “hybrid” analysis? Is disability simply a mitigating factor to be taken into account in assessing penalty, or does it negate the worker’s culpability? What connection or “nexus” must be established between the disability and the misconduct for the purposes of the hybrid analysis?
- Does an employer have the right to discipline an employee with a pornography or gambling addiction for inappropriate internet use in the workplace? Will alcoholism or drug addiction vitiate culpability for an employee’s absenteeism or workplace inebriation? Does the hybrid approach apply to depression- and anxiety-related misconduct? Where workplace theft is causally linked to an employee’s addiction, will an employer’s dismissal of that employee be considered discriminatory?
- What obligation does an employer have to investigate whether a disability played a role in an employee’s misconduct prior to imposing discipline? Is this obligation lessened if the employee persistently denies that he or she suffers from mental illness or addiction? If an employer determines that an employee’s misconduct is not within his or her control, what resources are available to help an employer craft appropriate accommodation measures?
- Does the employee have to disclose the existence of a disability in order to trigger the duty to accommodate and when must this information be revealed? What if this information is revealed only after the termination? What if the employee did not know about the disability until after his or her discharge? Does an employee who, post-discharge, undergoes successful rehabilitation have the right to be reinstated?
- How does the willingness of an employee to cooperate in the accommodation – for example, by providing necessary information to the employer or through participation in rehabilitation – affect an employer’s continuing duty to accommodate? Can an employer subject an employee who has been involved in addiction-related misconduct to random drug testing? How frequent a pattern of drug or alcohol relapse must an employer tolerate before its accommodation reaches a level of undue hardship?
- Will a last-chance agreement (LCA) providing that further disability-related misconduct will result in dismissal relieve an employer of its obligation to accommodate to the point of undue hardship? Can a discriminatory standard or requirement in an LCA be upheld if it constitutes a bona fide occupational requirement?